An Administrative Law Judge (ALJ) for the Equal Rights Division of the
Department of Industry, Labor and Human Relations issued a decision in the
above-captioned matter on June 12, 1991, concluding that the Complainant had
failed to prove the Respondent unlawfully discriminated against her on the basis of
sex. Complainant filed a timely petition for review by the Commission. Both parties
subsequently submitted written arguments to the Commission.

Based upon a review of the record in its entirety, the Labor and Industry Review
Commission issues the following:

ORDER

The decision of the Administrative Law Judge (copy attached) is modified as
follows:

1. Delete the second sentence in paragraph 7 of the FINDINGS OF FACT and
substitute the following sentence therefor:

"On the following morning when Kim Autio, the Director of the Program in Dental
Hygiene, had called in to her office secretary, Complainant got on the phone and
informed Autio that her physician had advised her that she could not travel with
Autio to a recruitment meeting in Orlando, Florida the weekend of February 12-14,
1988, since she was pregnant."

2. In the second sentence of paragraph 10 of the FINDINGS OF FACT, the word
"beginning" is deleted and the word "begin" is substituted therefor.

3. In paragraph 16 of the FINDINGS OF FACT, the phrase "Sometime in January of
1988" is deleted and the phrase "Sometime in late January or early February,
1988" is substituted therefor.

4., In the first sentence of paragraph 18 of the FINDINGS OF FACT, the words
"and informed" are deleted and the words "to inform" are substituted therefor.

The above modifications have been made to make the findings better conform to
the evidence, and in one instance to correct a misspelled word.

As modified, the decision of the Administrative Law Judge is affirmed and shall
stand as the FINAL ORDER herein.

Dated and mailed June 30, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

MEMORANDUM OPINION

The Complainant in this case learned that she was pregnant in January 1988,
with an expected due date in the latter part of September 1988. She worked as the
supervisor of the Junior Clinic for Respondent's dental hygiene program. Her
complaint of discrimination is that she needed a short time off to have her baby
and had intended to immediately return to work, but she was not permitted to
take a short leave; that the only option provided her was to take a leave for the
entire fall semester (1988-1989 school year) and then return for the second
semester not as the Junior Clinic supervisor, but as a regular clinical faculty
member. Complainant refused to accept the leave offered and instead filed a
complaint of discrimination on March 29, 1988.

The Commission agrees with the decision of the ALJ and is satisfied that the
Complainant was not unlawfully discriminated against. The Complainant has
presented numerous arguments on appeal. The remainder of this opinion
addresses those arguments.

Complainant first argues that the ALJ erred in ignoring substantial evidence that
Respondent had a leave policy and the leave policy was that coverage was
arranged. Respondent's policy (actually it was an unwritten practice) with respect
to time off for part-time employes in the Dental Hygiene program was as follows:
the worker was to arrange for someone else to cover the absence and to get
clearance of the change from Kim Autio, the director of the Dental Hygiene
program. The overwhelming evidence makes it perfectly clear that there is no
question but that this was the Respondent's practice regarding leaves of
absence.

Complainant argues, however, that Respondent's treatment of her under the policy
was not consistent with its treatment of others with disabilities; that the ALJ's
findings are written as if the policy changed in 1988 but the overwhelming
evidence in the record shows that the Respondent's policy has not changed. The
Complainant's arguments are without merit. First, the ALJ's decision is not written
as if the policy had changed; it is written to indicate that Respondent had never
encountered a situation such as that which existed in January 1988 when the
subject of a leave of absence arose in connection with the Complainant's
announced pregnancy. The Respondent was facing a problem in the area of
adequate clinical coverage because of extensive planned faculty cutbacks which
were to begin as of the 1988-89 school year due to declining enrollment.
Complainant, a junior clinical supervisor, was seeking a leave for a period of three
to six weeks in the fall of 1988. Granting such leave presented problems of
program continuity and student clinical development. The timing of the leave
would have coincided with the most critical phase of the students' clinical training,
the period when students first began to work with real patients and needed
maximum supervision. Appointing someone else as the clinical supervisor for only
the first semester and then reappointing Complainant as the supervisor for the
second semester also presented the problem of not providing for continuity in the
students' development of clinical skills. Secondly, with respect to Complainant's
argument that Respondent's treatment of her was not consistent with its
treatment of others with disabilities, this was because of the unusual situation
which existed in 1988. Further, a request for a leave of absence for any reason
would have met the same fate under these circumstances. Respondent's Exhibit 5;
III, 175.

Secondly, Complainant argues that Respondent's own assertions as to what its
leave policy was are varied and contradictory and do not support the adverse
treatment of her. Complainant argues as follows:

"Marquette's position statement on April 13, 1988, said that it simply had
no
policy:

. . . Part-time faculty do not qualify for fringe benefits, which includes short-term
disability leave. In other words, there is no provision for approved leaves of
absence for part-time faculty. If time off is needed they go off the payroll.

(Exh. 3, Position Statement of Marquette)

On January 27, 1988, Autio outlined another 'policy' in her allegedly
contemporaneous notes. She wrote:

Possibly a 1-2 week leave of absence for just a regular clinical faculty could be
arranged, however, for anyone in a supervisory position, any leave of absence for
any reason with the faculty cutbacks would cause clinical continuity difficulties for
the program and students.

(Resp. Exh. 3)

On February 19, she stated 'It would be not be (sic) feasible to grant a leave of
absence for any reason for just a portion of a semester." (emphasis in original)

Complainant's Revised Brief to the Commission, pp. 16-17.

As will be shown here, and below in connection with other arguments made by
Complainant, time and time again the Complainant has taken things out of
context and/or offered a distorted construction of the record evidence. For
example, Respondent's April 13, 1988 statement of position was not a statement
that it had no part-time leave policy, but a statement that it had no provision,
i.e.,
no written contractual provision, governing leaves for part-time dental hygiene
faculty. This is amply confirmed by the record. See I, 31-34; 62-63; 157-159; II,
53; III, 54, 56-57. Further, Autio was not outlining "another policy" in her January
27, 1988 notes, but was explaining her concerns associated with granting leaves of
absences to regular clinic faculty and those in supervisory positions in view of the
drastic upcoming faculty cutbacks for the 1988-89 school year, and the need to
have a "consistent supervisor" (one supervisor) to allow for program continuity in
the students' development of clinical skills. See Respondent's Exh. 3. Finally,
Autio's February 19 statement was not a contradictory statement of Respondent's
leave policy. Complainant apparently contends that Autio was now asserting that
Respondent's leave policy was not to grant leaves for less than a full semester.
Complainant distorts the meaning of Autio's February 19 statement by quoting
only a portion of one sentence from her statement. When read in its entirety,
however, such statement clearly shows that Autio was simply moving closer to the
position that the faculty cutbacks for the 1988-89 school year and the need for
consistency and continuity in the position of Junior Clinic supervisor did not make
it "feasible to grant a leave of absence for any reason for just a portion of a
semester." These were the very same concerns Autio had identified in her January
27, 1988 notes. Moreover, as the language just quoted shows, the circumstances
were such that a leave of absence for any reason would not be feasible.

Next, Complainant argues that Autio's testimony at the hearing regarding
Respondent's leave policy was inconsistent and incredible. For example,
Complainant argues that Autio testified that she was instructed to cut back the
faculty and was not permitted to bring in any temporary help or to bring back any
faculty that had been let go, but this contradicts Dean Goggins' testimony, citing
III, 57. Further, it is argued that Autio testified she never asked Dean Goggins if
she could hire someone on a temporary basis to cover absences. Autio's testimony
was not inconsistent nor was it incredible. First of all, Dean Goggins' testimony
does not contradict Autio's testimony that she was instructed to cut back the
faculty and was not permitted to bring in any temporary help or bring back any
faculty that had been let go. Goggins had merely been asked the general question
of whether "the dental school ever hired any temporary replacements," (1) and responded "yes." III, 57. Dean
Goggins did not testify that Autio was advised or permitted to bring in temporary
help in the program of Dental Hygiene in the midst of the faculty cutbacks.
Further, the fact that Complainant may not have specifically asked Dean Goggins
if she could hire someone on a temporary basis does not make her testimony that
she was not permitted to bring in any temporary help, inconsistent or incredible.
The decision on whether to grant Complainant a leave of absence was not
completely left up to Autio, but, in fact, had included input from Goggins as they
had looked at different options. for covering Complainant's class. 111, 58-63, 213,
147.

"8. Krause would have retained her position as Junior Clinic supervisor had she
not been pregnant and needed a leave. (III, 191, 199.)

9. In this instance, there was 'nothing' Krause could have done to keep her job.
(III, 191.)

10. If Krause had approached her and told her she needed a week off for an
emergency instead of a week off for pregnancy, arrangements could have been
made and Krause would not have lost her position as Junior Clinic supervisor. (III,
199.)" (emphasis in original)

Paragraph 8 cited by the Complainant simply fails to reveal any inconsistent or
incredible testimony on the part of Complainant. Paragraph 9 fails to disclose the
full context of this testimony by Autio. Autio's testimony was that under the
circumstances as described in her February 19, 1988 memo relating to faculty
cutbacks and the need for consistency and continuity in the position of clinical
supervisor, there was nothing Complainant could have done to keep her job as
Junior Clinic supervisor. III, 191. Paragraph 10 cited by Complainant can honestly
be characterized as a blatant misrepresentation of the testimony by Autio. Autio
did not testify as asserted by Complainant. Autio was asked if Complainant had
not told her she was pregnant and needed a week off for an emergency, would she
have continued as Junior Clinic supervisor. Autio's response was, "If
arrangements could have been made, then it would have been accommodated."

Additionally, Complainant argues that Autio testified that: (1) if Complainant had
found an acceptable replacement, she (Autio) would have considered it; and that
(2) she never told Complainant of the alternative to find an acceptable
replacement. However, there was no reason for Autio to tell Complainant to find a
replacement. Complainant herself knew of this alternative (II, 11), and in fact she
had secured acceptable replacements in the past. III, 211. Finally, Complainant
argues that the faculty cutback which allegedly precipitated the change in leave
policy, did not result in a change in leave policy since supervisors were not affected
by any cutbacks. Continuing, Complainant argues that, in any event, logic
precludes the rationale that because faculty had hours reduced, they could not
accept additional hours. First, it again must be noted that Respondent's leave
policy did not change. Secondly, Complainant's assertion that supervisors were
not affected by the cutback is simply wrong. Dental Hygiene faculty did sometimes
substitute for absent supervisors for short periods of time (e.g., for 1 day II, 73-82).
Less faculty meant there would be fewer individuals to serve as replacements.
Thirdly, Complainant's second argument totally ignores the further basis for
Autio's action in this matter. The time at which Complainant would have needed a
leave of absence occurred at the most critical time in late September when the
Junior Clinic students would first begin to work with real patients and needed
maximum supervision. It was important that the students have a consistent
supervisor to address their questions and concerns in order to insure program
continuity and student clinical development. Allowing various other faculty
members to accept additional hours to cover for Complainant would not have
permitted this program continuity. In this regard, Complainant admitted that "not
to (her) knowledge had any supervisor in dental hygiene asked for three weeks off
in September." II, 17-18.

A third argument by Complainant is that the ALJ erred by failing to analyze the
facts in accordance with the applicable law. First, apparently attempting to
suggest that Respondent's explanation for its treatment of Complainant was
pretextual, Complainant argues that while Respondent had said its policy was to
permit faculty to arrange coverage or to go off the payroll pursuant to discovery
requests, "At the hearing, Marquette stated for the first time that its 'policy' was
that an individual in a supervisory position cannot have a disability which would
require time off during the school year, because accommodating this would be a
'hardship' " (citing III, 202), but it submitted only statements, no evidence to
establish that an absence would, in fact, be a hardship.

Complainant's argument here fails. First, Respondent did not simply state that "an
individual" in a supervisory position cannot have a disability which would require
time off during the school year because accommodating this would be a hardship.
The Respondent was specifically referring to a clinical supervisor. The testimony
by Autio at III, 202 was that she "would permit someone to have a child in July
without losing her job as a clinic supervisor, but if she had the child during the
school year, she does lose her job as clinic supervisor." Id. (emphasis added) The
reason, identified by Autio in Respondent's position statement way back on April
13, 1988, was that "for anyone in a supervisor position, any leave of absence
would cause clinical continuity difficulties for the program and students."
Complainant's Exh. 3, p. 3, par. 2. Contrary to the suggestion by Complainant,
Respondent was not offering a belated explanation to justify its action taken in
connection with Complainant. Respondent's statement was not an announcement
of some "new policy," as Complainant seems to assert, but a course of action that
would be necessary under the circumstances presented. Further, it must be noted
that it was not for reasons of "hardship" that actually prevented Complainant from
obtaining the length of leave she desired. It was actually because the only faculty
found to be qualified to cover Complainant's position, either as a substitute or on a
co-supervisor basis, were either unavailable or unwilling to work with
Complainant.. This will be discussed further below. In any event, contrary to the
suggestion made by Complainant, Respondent does not bear the burden of proving
that "an absence would, in fact, be a 'hardship'." Respondent need only present
clear and reasonably specific reasons for its conduct. Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 25 FEP Cases 113, 117 (1981); Sanchez v. Texas
Commission on Alcoholism, 660 F.2d 658, 27 FEP Cases 1001 (5th Cir. 1981).
Respondent satisfied that obligation.

Secondly, Complainant has argued that "If Marquette has a 'no leave' policy based
on allegations of hardship, this case should be remanded for a disparate impact
analysis; however, such a policy would be so facially discriminatory that a
traditional disparate impact analysis is not even necessary." However, this is not a
disparate impact case. As noted above, it was the unavailability of a qualified
substitute to either cover or co-supervise with Complainant that actually caused
Respondent not to grant Complainant the leave she desired. Respondent does not
have a "no leave" policy for pregnant women. Other faculty have requested time off
for maternity purposes and Autio had always been able to accommodate them. (III,
171)

Next, Complainant argues that, in essence, Respondent implemented a mandatory
leave policy exclusively for Complainant based on her pregnancy (which is per se
illegal unless a bona fide occupational defense is established) ; that it is irrelevant
that Respondent gave leaves to pregnant women in the past, under the Wisconsin
Fair Employment Act (WFEA) discrimination cases must be considered on an
individual basis. However, considering Complainant's case on an individual basis
does not establish a violation under the WFEA. A request for a leave of absence
for
any reason for anyone in a supervisory position at the time in question would have
ended with the same result. See Respondent's Exhs. 3 and 5; III, 175.

A fourth argument by Complainant is that the ALJ erred in failing to recognize that
the Respondent's articulated reasons for its actions were pretextual. Complainant
lists Respondent's reasons for its decision with respect to her as follows: (1)
continuity or consistency would be a problem; (2) there was no one to cover for
her; and (3) her personality was such that she could not co-supervise.
Complainant then makes several arguments in an effort to establish that said
reasons were a pretext for unlawful discrimination. First, Complainant asserts that
Autio admitted that she never asked anyone to cover and never sought
substitutes, citing III, 190 of the transcript. However, Complainant ignores Autio's
testimony at the bottom of the preceding page (189) where Autio states that she
had considered but rejected the idea of obtaining a substitute as unsatisfactory.
Next, Complainant asserts that neither "'administrative convenience,' the
allegation that it was 'too difficult to find a replacement,' or 'continuity of
education' are considerations sufficient to sustain an employer's burden in
establishing a business justification for denying a leave." (emphasis added) This
argument fails, however, because Complainant was not denied a leave. III, 212;
Resp. Exh. 6.

A further argument made is that the co-supervisor option rejected by Autio lacks
credibility. Complainant makes a number of assertions on this subject. First, she
asserts that co-supervisors, as defined by Autio and another witness, worked
together to supervise a class and that Complainant could not have worked with
someone, as she would have been absent. If Complainant had been granted a leave
for a portion of the semester, it is obvious that she would not have been working
with someone during her period of absence. Autio's concern, however, was with
Complainant's ability to co-supervise with someone else when she was at work.

Next, it is argued that while Autio has stated (per Respondent's Exh. 5) that after
Complainant announced her pregnancy and before she determined she would not
give Complainant a contract she (Autio) was actively considering alternatives and,
in fact, had asked individuals to co-supervise Complainant's class, this statement
is "blatantly false." Complainant argues that there is no evidence that Autio
legitimately tried to obtain a co-supervisor; that "Autio did not discuss the alleged
co-supervisor issue with anyone until after she gave Krause's job to Nancy Bell."
(emphasis in original) In support of her theory, Complainant argues that Autio's
February 19, 1988 memo (Resp. Exh. 5) states that she discussed the option of a
co-clinic supervisory position with two faculty (Nancy Bell and Colleen Wirth)
before "denying Krause her job," but that Bell's deposition and hearing testimony
was that Autio did not mention co-clinic supervisor until after she (Autio) asked
her to take Complainant's job.

Preliminarily, it must be noted that Autio's decision was not that she "would not
give Krause a contract," but that she would recommend to the Dean that
Complainant be given a leave of absence for the first semester with opportunity to
return to clinical responsibilities for the second semester. More importantly,
however, Bell's testimony does not establish that Autio's Exhibit 5 statement is
false at all. First, while Complainant has sought to make it appear that it was a
"done deal," that Bell had in fact been made the Junior clinic supervisor before
Autio had discussed the possibility of co-supervision with Bell (and Wirth), there
was absolutely nothing in the record to establish that this was the case. Bell's
deposition testimony at pp. 13 and 14 was that she did not know and could
not
remember if she had signed a contract for the Junior Clinic supervisory position
for the 1988-89 year before being asked to co-supervise with Complainant. (Wirth
simply did not know when she had been asked by Autio to co-supervisor with
Complainant.) Secondly, assuming for purposes of argument that Bell's testimony
is accurate in that she had been asked to take (i.e., offered) the Junior clinic
position prior to being asked to co-supervise with Complainant (see contradictory
testimony by Autio at III, 204, however), this too fails to make Autio's February 19,
1988 statement false. Two important points must be noted here. One is that
Autio's February 19 memo indicates that she was ready to inform Complainant of
her final decision (not to grant Complainant a leave for a portion of the semester)
on February 19, 1988, when Complainant brought up the idea of appointing
someone to co-supervise with her, that Autio told Complainant she did not
consider such a proposal a good idea but would consider it, and that after this
conversation Autio discussed with two faculty members the idea of sharing Junior
Clinic duties with Complainant and both responded "no" because Complainant
would take charge. The second point, as already noted above, is that Bell did not
know if she had already signed a contract for the position of Junior Clinic
supervisor (i.e., accepted Autio's offer to become Junior Clinic supervisor) when
asked to co-supervise with Complainant. All Bell was able to state was that she
had been offered the Junior Clinic position prior to being asked to co-supervise
with Complainant. Accepting Bell's testimony that she had been offered the Junior
Clinic position prior to being asked to co-supervise with Complainant does not
render Autio's February 19 statement incredible. The most reasonable
interpretation to be given the evidence is that after offering Bell Complainant's
position, but before Bell accepted the offer, Complainant raised the idea of co-clinic supervision for the entire year and Autio therefore went back to Bell with the
proposition of co-supervision with Complainant as a last-minute effort to
accommodate Complainant in her requested length of leave of absence.

Next, Complainant argues that the incredibility of Marquette's position is evident
because its reasons for its treatment of Complainant varied and changed during
the investigative stage of the case, the depositions and finally during the last day
of the hearing. This argument is without merit. Complainant has failed to identify
any changes in the Respondent's stated reasons for its treatment of Complainant,
and the record, in fact, provides ample evidence that Respondent's reasons for its
treatment of Complainant remained consistent.

Finally, Complainant attempts to portray Autio as unable to be consistent
regarding the reasons for her treatment of Complainant, contrasting Autio's
February 5, 1988 letter to Complainant which refers to Complainant as needing a
leave for a "major portion" of the first semester of the 1988-89 academic year with
a subsequent letter given to Complainant on February 26, 1988, which had
deleted the word "major" and referred to Complainant's need for a leave of absence
for a "portion" of the first semester. of the 1988-89 academic year. This argument
is also without merit. At the time of the February 5 letter, Autio was considering
the feasibility of a six-week leave of absence for Complainant, while on February
26 Autio was considering the feasibility of a three-week leave of absence for
Complainant. See Respondent's Exhs. 3 and 5; 111, 147-148.

Another argument presented by Complainant is that the ALJ erred in finding that
covering for Complainant would be a hardship because there was "never any
attempt to cover Krause's class in accordance with Marquette's established
policies." The evidence fails to support Complainant's argument. First, as
previously stated, Respondent's established leave practice for part-time employes
was that the "worker" was to arrange for someone else to cover the absence and
then to get clearance for this change from Autio. As found by the ALJ, the
Complainant failed to follow this practice because she never provided Autio with
the names of anyone that was willing to cover for her. III, 211-212; II, 10-11.
Complainant was aware of this practice as she had provided Autio with the name
of a substitute to cover her absences in the past. III, 211. Secondly, even though
Complainant had not followed the usual procedure, Autio took it upon herself to
determine if a suitable arrangement could be made to meet Complainant's need for
a leave of absence. Autio's efforts included considering covering Complainant's
evidence by means of a substitute as well as not only considering, but actively
requesting two individuals to be a co-supervisor with Complainant. III, 151, 162,
189, 203.

Referencing the first half of Finding of Fact 26 wherein the ALJ states Complainant
requested a leave ranging from three to six weeks beginning in the fall semester of
1988, Complainant argues that she would have returned after only one week if
Autio had said that was the only way she could keep her job (citing I, 115), and
that she, in fact, had only taken one and one-half weeks off from another job she
held as a waitress at the time in question. Actually, however, what Complainant
stated at p. 115 of the transcript was that she "would have tried (her) hardest to
come back in one week." Id. Further, the only medical evidence regarding
Complainant in the record was a statement from her doctor saying that he had
reviewed Complainant's medical history and concluded that she was physically
capable of returning to work after a "two to three week leave." (Comp. Exh. 1) In
any case, Autio testified that Complainant had never apprised her that anything
less than a three-week leave would be taken. Moreover, Autio stated that she really
did not know what to believe as far as how long a period Complainant would be
gone because Complainant had continued to change the amount of time that she
would be gone. Autio commented in her February 19, 1988 letter as follows: ". . .
During the February 19 conversation, Diane stated that her physician said she
could be back to work in three weeks. (Please note that initially Diane asked to be
gone six-weeks, then four weeks, and now three-weeks. I am unsure as to the time
period she will be gone. The times have continued to change in a downward trend.
I almost feel like I am in a 'sale of the century' game with Diane rather than what
is the best price -- what is the best leave of absence time period. Don't know what to
believe.) . . ."

Complainant has also argued that there is no "substantiation" of any hardship in
covering for Complainant, but the evidence is to the contrary. Faculty cutbacks
restricted Autio's flexibility to accommodate faculty leaves of absence. Autio had
previously been instructed by the Dean to begin planning for part-time faculty
cutbacks for the 1988-89 scheduled year due to declining student enrollment and
those plans had been submitted in April 1987 and approved by the Dean in
December 1987. (III, 171, 175-176; Resp. Exh. 1) Secondly, there was the problem
of inability to maintain continuity of instruction that would have resulted by
granting Complainant a leave for only a portion of the semester. The time that
Complainant would have needed a leave coincided with the most critical phase of
the student clinical training, the latter part of September. As previously noted, at
that time period of the first semester the junior year clinical students would have
begun their exposure to dealing with real patients in the Dental Hygiene clinic and
it was important that they have consistent and maximum supervision. Resp. Exh.
3; III, 10-11, 70, 102-103, 148. Appointing someone to substitute as clinical
supervisor for only the first semester and then reappointing Complainant as the
supervisor for the second semester would have also presented a continuity
problem for the program and the students. Comp. Exh. 3.

Complainant's further argument that the Findings of Fact are devoid of evidence
for Marquette's need to demote her is simply not true. A review of paragraphs 9,
10, 13, 18 and 19 indicates the reason for this. In short, it was due to the problem
of a lack of program continuity which would have resulted if Complainant were to
be absent during a critical time in the first semester or had sought to take over as
the supervisor for the second semester, plus the unwillingness of Bell and Wirth to
co-supervise with Complainant for the entire academic year.

Complainant next argues that the rationale based on the availability of limited
resources and scheduling problems is false; that Autio had nine months and 11
staff available to arrange coverage for Complainant. The problem facing Autio,
however, was that the only faculty she found to be qualified to cover Complainant's
position either as a substitute or on a co-supervisory basis, were either not
available or were unwilling to work with Complainant.

The Complainant has stated that the reasons accepted by the ALJ in Finding of
Fact 19 (Complainant apparently means 18) are "incredulous," asserting that the
discussion "concerning co-supervisors and dickering with the enrollment is
irrelevant and (an) obvious pretext." However, these were suggestions Complainant
herself had presented to Autio.

In Finding of Fact 22 the ALJ states that Autio did not believe Carol Benson and
Katherine Schrubbe were qualified to function as supervisors in the Junior Clinic.
Complainant has argued, in essence, that the ALJ's emphasis on clinical
supervisory experience in this finding is misplaced; that of the 1988-89 staff
members, only two did not have supervisory responsibilities and even they covered
for supervisors. However, the supervisory responsibilities of which Complainant
speaks involved dental hygiene faculty designated as course or lab supervisors.
These supervisory functions were exercised in a non-clinical setting. It did not
involve exercising supervisory functions over students working with real patients
for the first time, a time that was really scary and caused great anxiety for the
students. I, 101; III, 103, 165. Further, Autio was uncertain as to the length of
time Complainant would be absent. In Autio's professional judgment, someone
with clinical supervisory experience was required to fill in either as a substitute or
on a co-supervisory basis. However, those with this supervisory experience were
either not available or were unwilling to work with Complainant. The evidence
corroborates Autio's professional judgment. Barbara Komives, the Chairwoman of
the Department of Dental Hygiene at West Virginia University, the only other
university besides Marquette with a four-year dental hygiene program, testified
that to cover for complainant's absence she would not just have a regular faculty
person cover her position, it would have to be someone with experience as a
clinical supervisor. III, 12-13. Marilyn Tarkowski, a former Senior Clinic supervisor
for Respondent (and Complainant's own witness), testified that when she was
clinic supervisor she generally sought another clinic supervisor, i.e., Complainant,
to cover for her absences. 11, 31, 40. See also testimony of Colleen Wirth at III,
96.

Carol Benson and Katherine Schrubbe are among the faculty Autio concluded
were not qualified to cover for Complainant. Complainant argues that they were
and that it was not until each had agreed to testify for Complainant that they had
heard any criticism about them from Autio. This argument by Complainant also
fails. At the hearing, the witnesses generally agreed that important qualities for the
Junior Clinic supervisor position included, among other things, reliability, on-time
performance, adherence to and enforcement of policies and a willingness to do
extra work. Tarkowski, who last worked for Respondent in January 1987, testified
that with respect to Schrubbe's reputation for on-time performance, "she had some
problems with being on time." II, 38. In a letter dated September 18, 1987 (Resp.
Exh. 18), Autio had recommended to Dean Goggins that Schrubbe not be granted
early promotion to the rank of Adjunct Associate Professor because Autio found
her to have "a problem in that she concerns herself with other faculty members
and their responsibilities. She is all too concerned that she not be required to do
more than the minimum." Other witnesses corroborated those views about
Schrubbe. III, 40-42, 84-86, 106-107. Extolling the qualifications of Benson,
Complainant asserts that Benson was promoted to the position of Adjunct
Professor effective August 16, 1987, and in response Autio had commented to her
that "Your contributions to the program over the years have insured the high
quality of education that our students receive," (Comp. Exh. 13) and also that
Benson had received an award as outstanding hygienist from Sigma Phi Alpha.
(Comp. Exh. 12). However, other evidence and testimony presented at the hearing
tended to offset the "mileage" Complainant seeks to obtain from Complainant's
Exhibits 12 and 13. For example, Autio testified that there were various instances
of conduct by Benson going back to 1984 when she (Autio) first became director
that would cause her to have concerns if Benson were the clinical supervisor.
Autio cited a November 30, 1984 letter of Benson's in which Benson had
complained about the manner in which Autio had elected to staff the dental
therapy laboratory, making quite a few negative accusations about Autio's
judgment. III, 157; Resp. Exh. 19-A and 19-B. Other evidence, including a
February 4, 1988, memo from Benson to Autio in which Benson, who had favored
that seniority be given more consideration by Autio in making the faculty
cutbacks, began the memo stating, "I wish to go on record objecting to the method
used to cut some part-time faculty and to reduce other teaching days." Further,
other witnesses confirmed Autio's concerns about Benson stating, her "attitude
and the manner in which some issues would be raised would create a negative
outlook," and that Benson was not "supervisory material." II, 44, 86, 108-109.

Complainant has further argued that there were other staff members qualified to
cover for Complainant, but were never asked. They include Barbara MacMillan,
Nancy Bell, Colleen Wirth, Marilyn Beck, Mary Wann, Patrice Sisulak and Linda
Diedrich. Complainant also cites Autio herself as having been able to cover for
Complainant. However, MacMillan was never a Junior Clinic supervisor. Further,
she had a problem with tardiness, and it had been brought to Autio's attention
that she had failed to fulfill all of her clinical responsibilities even as a regular
faculty member and that there were also serious concerns regarding MacMillan's
instructions of a didactic (lecture) course. III, 167. Bell and Wirth, of course, had.
refused to co-supervisor with Complainant because of Complainant's domineering
personality. (2) Beck herself
conceded that she was too busy to have covered for Complainant. I, 52. Wann had
never been a clinic supervisor. II, 123. Sisulak had never been a clinic supervisor,
and in fact had been one of Autio's merit-based faculty cutbacks. II, 181. Diedrich
herself basically admitted that she was not qualified. III, 173. Autio's testimony
shows that she was too busy to have taken over the position. 111, 135-138.

Next, Complainant attempts to characterize the Junior Clinic supervisory position
as basically involving planning activities which are all completed prior to the
beginning of the academic year. It is true that there were several activities that
were completed before the start of the year. However, this did not mean that a
qualified individual was no longer needed to run the clinic. As several witness
testified:

"The most important duties I would think are the guidance and the counseling
that you have to give to the students on a day-to-day basis, being there and
showing them professionalism and continuity, seeing that everything is followed
through and that they understand what needs to be done and are oriented into the
clinical setting. . . Just the frustration that the students can exhibit and feel that
anxiety that can build up in them at this time I feel is something that needs to
really be kept in track and monitored. . . . You need to have someone in there who
is there who can always answer the questions and direct the students in the way
that they need to be directed so that there is a total follow-through, that they don't
get any erroneous information or even just slightly different information."

III, 102-103. See also, III, 38, 148. Even Complainant's witness, Schrubbe,
testified that the clinical supervisor was needed to address "questionable things
that could come in the clinic day." 11, 67.

In seeking to minimize the importance of the clinical supervisor's functions, the
Complainant has also argued that the evidence showed there was no special
training to be a clinic supervisor. However, even so, this does not mean that
individuals with prior clinic supervisory experience were not best qualified for this
position. And, in any case, this does not diminish the important qualities of
reliability, on-time performance, willingness to adhere to and enforce policies and
willingness to do extra work, which a clinic supervisor must possess.

Complainant further argues that Autio's assertion about not being able to arrange
coverage (co-supervision) because individuals would not work with her due to her
domineering personality is not believable and a pretext. First, Complainant argues
that the pretextual nature of this reason is evident based on Autio's description of
Complainant before her pregnancy was announced and after. In this regard,
Complainant cites the following comments made by Autio on Complainant's
November 1983 and 1987 evaluations: "Krause has been an extremely cooperative
faculty member. . ." (Comp. Exh. 5) ; "Diane is a team member who is valuable to
the success of the program. She thinks nothing of doing more than her share of
the work." (Comp. Exh. 4) (Complainant notes that Autio testified that "to function
as a team member is to be able to work well with others.") Complainant then
contrasts these comments with Autio's statements that Complainant was "too
bossy" and her personality too domineering to work with others as set forth in
Autio's 2/19/88 memo (Resp. Exh. 5) and Respondent's April 13, 1988 statement
of position sent to the ERD (Comp. Exh. 3).

However, Autio provided a persuasive rationale for her statements through the
following Q and A exchange:

"Q: Why was Diane's personality not important when she was a clinic
supervisor?

A: Well, it was, but she was in a supervisor role at that time, all right?

Q: So what does that mean?

A: So, I mean, a lot of times supervisors will tend to be -- you know, in the
leadership they'll tend to take charge and sometimes be somewhat bossy, but that
was just an assumption with her, and that was not a reason not to give her a leave
of absence. It only came into play when she asked me to consider co-supervisors.
That's the only time it came up, it was not meant to be derogatory at all, it was
just rationale as to why someone wouldn't work with her." (III, 213-214)

Complainant has also attempted to show evidence of pretext by asserting that
while Autio maintained in her 2/29/88 notes (Comp. Exh. 17) (notes Autio kept on
personnel) that she had brought Complainant's bossy personality to her attention
on a yearly basis, in Autio's 9/13/88 submission to the ERD (Comp. Exh. 18)
Autio stated, "It was not until this time that her bossy attitude was brought up
and that was to point out that she couldn't share supervisory duties because of
her behavior." This argument also fails. Autio's comments contained in the
9/13/88 statement were only some "key points" Autio chose to make in response
to information the Complainant had submitted to the ERD on 5/31/88. It is
evident that Autio was not trying to state in her 9/13/88 communication that she
had never raised Complainant's "bossy personality" with her. This is clear because
when Autio had submitted her detailed statement to the ERD on 4/13/88, she had
repeatedly commented about her discussions with Complainant on this
subject.

Moreover, further evidence that a pretext was not established can be seen in the
following testimony by Colleen Wirth, who had introduced Complainant to her
husband, served as Complainant's maid of honor, and who even still considered
herself to be a good friend of Complainant's at the time of the hearing (III, 100-
101):

"A: I told her (Autio) I didn't feel I could do that (co-supervise with
Complainant).

Q: Why couldn't you?

A: Because of Diane's domineering personality. She has a tendency to do things the
way that she wants to and to direct them the way that she wants things to be
done, and I didn't feel that she would be able to equally share the responsibility
and actually give me half of the responsibility that would have been required. And
I would have felt that I was still under her and not equal to her." (III, 105)

Additionally, Complainant has argued that a further instance of pretext can be
found in Autio's conversation with Rosemary Petranech, Respondent's Director of
Affirmative Action. Complainant argues that Autio had led Petranech to believe
there was a problem with Complainant's performance. Complainant makes this
argument because at Petranech's deposition she indicated that Autio might have
had some question about how Complainant interacted or related to the students.
Petranech Deposition, pp. 4, 7-8. However, as both Petranech's deposition
testimony and her testimony at the hearing at I, 165, 171 show, Petranech could
not really remember what Autio had said, as she was unsure whether it was about
Complainant's relationship to the students or perhaps in relationship to her co-
workers.

Complainant also makes a number of arguments in an effort to establish that
continuity was not the real reason for Autio's decision. For instance, Complainant
asserts that if continuity were of paramount concern, Autio could have given
Complainant the first semester off with no demotion. However, continuity of
instruction was important with respect to the entire year, not just the first
semester. And, in any event, the individual Autio found qualified and willing to
serve as clinic supervisor, refused to take the position unless it was for the entire
year. III, 31.

Further, citing Dean Goggins' testimony at III, 70, Complainant argues that
continuity is no less a concern for the full-time faculty, yet a review of the Dental
School faculty employment records shows that hundreds of leaves which fall
during the school year were granted and continuity was arranged. Complainant
mischaracterizes Goggins' testimony. Goggins did concede that continuity was a
concern of the Dental School as a whole; however, Goggins further testified that
the dental hygiene program requires "closer supervision of or more intense
supervision of student clinical activities." III, 70-71. Further, Dean Goggins had
earlier testified that "Dental hygiene students are a different-very different student
population. They're younger, most of them coming in fresh out of high school." III,
69.

Finally, Complainant argues that the fact that Nancy Bell, the current Junior
Clinic supervisor of the two-day course, is only present in the clinic for a day and a
half and is either at school, home, out shopping or at the art museum during the
second half of the day clinic, indicates that the continuity defense is a pretext.
Complainant apparently makes this argument in conjunction with her initial
statement under this section of her brief titled "'Continuity' Was Not the Real
Reason for Autio's Decision." The initial statement made by Complainant was that
"Another reason asserted by Autio was that it was not in the best interest of the
students to have a Junior Clinic supervisor that is 'not there all the time,"' citing
Complainant's Exhibit 17. However, Complainant has once again taken things
completely out of context. It is clear from a reading of Complainant's Exhibit 17
that Autio's comment about the need for the Junior Clinic supervisor to be there
all the time was not a reference to the need for the supervisor to be there for every
minute of each day, but a need to be there for a whole semester or a year.

A fifth argument presented by Complainant is that the ALJ erred in failing to
recognize that the Respondent's real reason for its actions with respect to
Complainant may have been to reduce staff. There was no persuasive evidence
presented to show that this was the case, however. In fact, Complainant never
really even pursued this argument at the hearing.

The sixth and final argument made by Complainant is that the ALJ erred in citing
"'FINDINGS OF FACT' unsubstantiated by the record." However, no such finding
has been identified by the Complainant and a review of the record shows that the
findings are overwhelmingly supported by the record.

Finally, the Commission makes the following additional observations and
comments:

1. Complainant has asserted that "Under the ALJ's erroneous view, if a pregnant
individual applies for a job, the employer is within its rights to at that point turn
her down because, obviously, most pregnant women will need time off." (emphasis
in original) This is not necessarily the case. The critical factors that would have to
be examined in such a case are: (1) what is the work situation which exists at the
employer's place of business; and (2) what is the employer's practice with respect
to other disabilities?

2. Complainant has asserted that if this decision is permitted to stand as
precedent, the equal rights for women -- particularly in educational settings -- will
be a thing of the past. Employers will be able to assert a reason for their
discriminatory treatment without having to provide substantiation. Neither of
these assertions is true. Based on the facts as presented, Respondent's conduct
was not discriminatory, and as the discussion above shows, the Respondent did
provide substantiation for its actions taken with respect to Complainant.

3. There are two basic facts in this case which provide convincing evidence that
the Respondent's actions were not motivated on the basis of Complainant's sex
(pregnancy): (1) in the past, when dental hygiene faculty had sought leaves for
maternity purposes, Autio had always accommodated their leave requests (III,
171); and (2) Autio and the Complainant had been good friends. Autio had
socialized with Complainant more than any other faculty member. They went out
to dinner, Autio would go out to Complainant's golf club and Autio had stayed at
Complainant's house for two days in 1987 when Autio had torn some knee
ligaments. Having been involved in this type of friendship with Complainant, it is
simply unbelievable that Autio would have been motivated to discriminate against
Complainant on the basis of her sex (pregnancy).

4. The facts of this case are remarkably similar to Ekumah v. Greenery Group, 58
FEP Cases 1045 (3/31/92), a case decided by the District Court of Massachusetts.
The headnote in that case reads as follows:

"Pregnant nursing assistant, placed on unpaid leave instead of being reassigned to
light duty, has not shown employer's explanation -- no appropriate long-term, light
duty assignments were available and her heavy lifting duties could not be
reassigned to other nursing assistants for remaining five or six months of her
pregnancy -- to be pretext for sex discrimination, even though disputed factual
issues regarding employer's policy of accommodating temporarily disabled
employes and bona fides of its articulated reason are created by evidence that past
unwritten policy has been to reassign duties when nursing assistant is disabled,
that employer initially failed to accommodate two pregnant nursing assistants, and
that she never observed discharge of nursing assistant with disability other than
pregnancy due to unavailability of light-duty assignments, since evidence is
insufficient to support any reasonable inference that employer's alleged 'sham'
reason was pretext for sex discrimination; employer accommodated the two
pregnant employes, and she has not carried her burden to adduce any evidence to
show pretext."

(1)( Back
) There are 13 departments in the School of Dentistry. The program of
Dental Hygiene is separate and not apart of the Dental School program. III, 55.

(2)( Back ) Although
not mentioned, another faculty member, Catherine Bonney, who had apparently
not been asked to co-supervise by Autio, testified that she too would not have been
willing to co-supervise with Complainant for the same reason given by Bell and
Wirth.